Cooke and Anor v MGN: Raising the bar

After an anxious wait for the first judicial interpretation of the new “serious harm” threshold imposed by the Defamation Act 2013, Wednesday’s judgment by Bean J in Cooke and Anor v MGN [2014] EWHC 2831 gives an early indication of just how much the bar has been raised.

Background

The case involved an article published in January of this year by the Sunday Mirror, entitled “Millionaire Tory Cashes in on TV Benefits Street”, focusing on the exploitation by disreputable landlords of low income tenants. The piece included the fact that three of the houses on the same street were owned by Midland Heart Housing Association, and that its Chief Executive, Ruth Cooke, earns £179,000 a year and lives in a large house in Gloucestershire. In fact, Midland Heart is a not for profit housing and care charity, which reinvests any surplus into its homes for the benefit of its customers. The Claimants, Midland Heart Limited (owner of Midland Heart Housing Association) and Ms Cooke, were named in the article despite being promised they would not be explicitly mentioned. The Sunday Mirror said this was an honest mistake and published an apology the following Sunday. The apology however, was not agreed, and deemed insufficient by the Claimants, who subsequently brought a claim in libel against the owners of both the Sunday Mirror and the Birmingham Mail website, which briefly featured the article. The trial of the two preliminary issues of meaning and serious harm was heard on 23 July, with reserved judgment handed down on Wednesday.

Meaning

Rejecting both parties’ submissions on meaning, Bean J found that the words complained of, in their natural an ordinary meaning, were as follows:

(a) Midland Heart, whose chief executive is Ruth Cooke, is one of the well-off landlords of rented properties on James Turner Street who let houses to people in receipt of housing benefit at rents of up to £650 per month, thereby making money from the misery of James Turner Street residents; and that

(b) Ms Cooke is personally responsible for this conduct of Midland Heart, and has herself profited and become rich from it, in that she is paid £179,000 a year and lives in a large house in Gloucestershire.

The Judge then turned to the thornier issue of serious harm.

The new “serious harm” test

The old common law tests, namely those in Thornton v Telegraph Media Group and Jameel (Yousef) v Dow Jones Inc, required the words complained of to cause, or tend to cause, substantial adverse consequences to the claimant, and to constitute a real and substantial tort, in order to meet the defamatory threshold. Under the new test in section 1(1), “a statement is not defamatory unless it has caused or is likely to cause serious harm to the reputation of the claimant”. It is uncontroversial, and indeed the Explanatory Notes to the Act confirm, that “serious” implies a higher burden than “substantial”.

Although not relevant to the present case, Bean J touched briefly on the curious effect of the words “has caused”, which look backwards in time, as opposed to “is likely to cause”, which look forwards, in that whether or not a statement is held to be defamatory on the day of publication might depend respectively on the date of issue of proceedings or the date of trial. He preferred the Claimants’ submission that the correct dividing line between past and future harm was the date of issuing the claim. More broadly however, his Judgment will not allay concerns already raised by commentators that, in contrast to the previous law, it is now impossible to assess at the time of publication whether or not particular words are defamatory. Even more surprising is the fact that those words could in theory “cease” to be defamatory once the existence or not of harm has been established.

As to the interpretation of “serious harm”, and in particular its relative burden over and above “substantial harm”, the Claimants in this case sought to rely on a statement by Lord McNally in a House of Lords debate in December 2012, to the effect that the new test would raise the bar to a “modest extent” above the requirement of the current law. Bean J however, dismissed the statement as inadmissible, arguing that the words “serious harm” were sufficiently clear in their ordinary meaning.

On the question of how and what evidence to adduce in order to prove serious harm, the Judge did not offer much in the way of guidance. Whereas the Claimants argued that the evidential difficulties of establishing “actual” or “likely” harm favoured a “broad assessment approach” over the “sophisticated analytical approach” adopted, for example, in Cairns v Modi, the Defendants explained the need for “tangible evidence”, submitting that claimants could otherwise infer serious harm from the nature of the allegations and the extent of publication, thereby weakening the burden set by section 1.

Bean J said simply that it would not, in every case, be necessary to adduce evidence. Where a statement was so obviously likely to cause serious harm to a person’s reputation, for example the false allegation in a national newspaper, with a wide circulation, that a person was a terrorist or a paedophile, the likelihood could be inferred. In such a case, it would not be worth the claimant’s expense commissioning an opinion poll or survey, which in any event might be unrepresentative of “right-thinking people” generally. Remarkably however, his bracketed caveat suggests that, even where the likelihood of serious harm is “plain”, this might be negated by a “prompt and prominent” apology.

The Judge did not believe that the present case came “anywhere near” the end of the spectrum where serious harm could be inferred, nor had the Claimants produced any specific evidence of serious harm. He also attached significance to the apology, which he said was both sufficient to neutralise or at least minimise any negative impression created by the original article, and far more widely available online than the original piece. Bean J concluded, therefore, that the Claimants had failed to meet the test of serious harm.

Comment

Although Wednesday’s judgment supports what has already been widely accepted, that the new test of “serious harm” constitutes a higher bar for claimants, it heralds, perhaps, an even more radical departure from the old, common law threshold. In particular, potential claimants will likely be deterred by the surprising suggestion that even statements so obviously damaging that the serious harm they cause can simply be inferred, might nevertheless be neutralised by a bold and swift apology.

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